Summum ius, summa iniuria

On the ambiguity of law and mercy in ecclesiastical law

Abstract

A strict application of the law can lead to the injustice in individual cases, which is to be avoided in canon law, as it is directed to the salvation of souls. Canon law recognizes the basic principle of canonical equity, which can be characterized as strict law tempered by mercy. In this way, law and mercy can be properly combined to avoid mere legal positivism on the one hand and legal uncertainty and arbitrariness on the other. For this purpose, canon law has var- ious instruments of flexibility, which will be explained in this article. Canonical equity is not lim- ited to this, however, but permeates canon law as a dynamic basic principle, which will be illus- trated by means of examples. The ambiguity of law and mercy has particular relevance in penal law, which will be subsequently discussed. At the end of this article, the question will be raised whether the ways presented can actually contribute to an appropriate combination of law and mercy and thus to a just application of the law.